A.H. Khan, J.
1. The circumstances in which this application for bail is directly submitted to the High Court are that the petitioner who is a legal practitioner is a resident of Shajapur. In para 12 of his affidavit dated 13th June 1959, he has stated that he could not move the Additional District Magistrate Shajapur for bail because he has gone to a link Court in connection with official work. There is a link Court at Rajgarh. It is further alleged that the Sessions Judge was on leave, therefore the Additional Sessions Judge could not hear his application for bail because unless a case is transferred to the Additional Sessions Judge by the Sessions Judge, he does not hear cases.
2. The petitioner in this case is a lawyer who practises on me criminal side at Shajapur and in his application for bail, he has alleged that because he does Criminal cases, he has unfortunately incurred the displeasure of the Thanedar at Shajapur. The Thanedar who has filed an affidavit in reply has denied the existence of any unpleasant feelings. Without deciding the point whether any ill-feeling exists or not, I snail consider other facts which are of substance.
3. It is alleged by the petitioner that Narayan Balai r/o Vikla Khedi village eloped with one Mst. Ajudhya Bai. Thereupon her father lodged a report in which he named Narayan Balia as a perpetrator of the offence. It is said that Narayan accompanied by Ajudhya Bai came to the house of the petitioner on 21-6-1959 at 8 P.M. and Ajudhya Bai told the counsel (petitioner) that since her husband had deserted her for the last four years, she wanted a judicial separation. The counsel prepared a draft and asked the parties to come the following day to enable him to file the suit.
It is admitted by the petitioner that he received Rs. 100/- as his professional fees. The couple did not turn up and he learnt on reliable authority that on account of some bitterness with the leaders of the Jan Sangh party, coupled with the displeasure of the police, a case is now being concocted against him under section 376 I.P.C. It is being alleged that, while the couple were at the petitioner's house seeking advice, the petitioner had carnal knowledge of Mst. Ajudhya Bai.
It is also said that on 23-6-1959, the Secretary of Jan Sangh at Shajapur lodged a report that one Sattar had also raped Mst. Ajudha Bai. Munalal Naik, Thanedar of Shajapur in his affidavit has not denied any of these facts. He has only denied the existence of any unpleasantness between him and the petitioner. It is in these circumstances that the petitioner has filed this application and he submits that the police is out to harass him and subject him to all sorts of ignominies.
4. The petitioner has an apprehension that the arrest by police would cause him humiliation and that being a member of an honourable profession wants to avoid it. While not shirking a trial, he does not want that the police on account of strained relations should inflict indignity on him. Before deciding the question of bail, I would like to consider two objections raised by the learned Additional Government Advocate.
5. The first submission is that the petitioner in ordinary course should not have come up to High Court for bail and it is not proper for the petitioner to have applied directly to the High Court for bail. It is true that the usual practice is that a person desiring bail should first approach the lower court, but this practice is not inflexible, because Section 498 of the Criminal Procedure Code gives unlimited judicial discretion to the High Court in the matter of granting bail. I see no bar to the High Court entertaining a bail application directly if peculiar circumstances exist as they do in this case.
6. The second submission is that unless the petitioner is arrested, he cannot be granted bail. There is some conflict of judicial authority on the point. I have been always of the opinion that if a person accused of an offence appears before the Court and shows sufficient reasons he can be enlarged on bail. I have examined this proposition in a case reported in State v. Mangilal Shankarlal, AIR 1952 Madh. B. 161. This point, later on, was also considered by the Full Bench of the Madhya Bharat High Court of which I was also a member in State v. Dallu Punja, AIR 1954 Mad-B 113, in which my view did not prevail.
7. But first of all, the decisions of the Madhya Bharat High Court are not binding on the Madhya Pradesh High Court, secondly this case is distinguishable from the Madhya Bharat cases on the ground that in Madhya Bharat case, the accused put in appearance through a counsel only, whereas in the present case, he has appeared in person and has submitted himself to the custody of the court which is as good as arrest.
8. Mr. Puttu Lal Dubey Additional Government Adovcate has referred me to certain cases which I have already considered in my judgment reported in S. P. Bhargava v. Rameshwar Shastri AIR 1952 Madh-B 3. It is, therefore, unnecessary to examine them again. Mr. Puttu Lal however tells me that State v. Hasan Mohammad, AIR 1951 Nag. 471 was not considered by me earlier. On going through the facts of the Nagpur case I find that the application for bail was given through a counsel and the accused did not appear himself. Section 497 of the Criminal Procedure Code runs thus:
''When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer incharge of a police-station, or appears or is broughtbefore a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of anoffence punishable with death or imprisonment forlife.'
9. Before 1956, the words 'or suspected of the commission' were not there. A man may be said to be accused of the offence, if there is a report against him, as decided by Supreme Court M. P. Sharma v. Satish Chandra AIR 1954 S.C. 300. But the words 'suspected by commission of an offence' are words of great amplitude and a suspicion may be there much before any proceedings by the police. By introducing those words by the amendment Act of 1955, the Legislature has conferred wider powers on the court. This amendment and its implication were not considered by the cases cited by the Additional Government Advocate. The amended section lays down that if a person appears before the Court, he can be released on bail by the Court.
I was of the opinion that a man can appear personally or through a counsel. The trend of the rulings that were in conflict with my opinion was that the word appears does not mean appearance through a counsel. In the present case, even that position does not arise and the person suspected of the commission of an offence has actually appeared before the Court. In State of Uttar Pradesh v. Kailash (S) AIR 1955 All 98, Raghubar Dayal, J. has observed that when a person appears in court, his very physical presence results in his placing himself in the custody of the court and that such a person can be released on bail.
10. Having regard to all the facts of thecase, I would admit the petitioner to bail. I, therefore, direct that if the applicant executes a bondand furnishes security for Rs. 2000/- to the satisfaction of the Deputy Registrar, High Court, Gwalior,he shall not be arrested by the police and remainon bail till the decision of the case, if challengedagainst him.